FAIR Legislative Update September 17, 2012
House Judiciary Chairman Lamar Smith (R-TX) announced Friday he plans on introducing legislation this week that would eliminate the visa lottery green card program and reallocate its 55,000 annual visa allotment to foreign graduates of U.S. universities with PhDs and Master's degrees in STEM fields (Science, Technology, Engineering, and Mathematics). (See Judiciary Committee Press Release, Sept. 14, 2012; see also The Hill, Sept. 16, 2012)
The legislation would eliminate the visa lottery and reallocate those green cards to two new employment-based visa categories, the EB-6 and EB-7. (See Judiciary Committee Summary of Bill; see also Judiciary Committee Draft Legislation) The EB-6 category is intended for foreign students holding a PhD in a STEM field from a U.S. university who agrees to work for at least five-years in the aggregate for the petitioning employer or in the U.S. in a STEM field. (See Draft Legislation at §2) Similarly, the EB-7 category is intended for foreign students holding both a Master's and baccalaureate degree in a STEM field from a U.S. university who agree to work for at least five-years in the aggregate for the petitioning employer or in the U.S. in a STEM field. (Id.) Those with Master's degrees will be granted a green card only after all qualifying PhD petitions have been granted. (Id.)
Under Chairman Smith's legislation, employers who petition to hire these graduates under the EB-6 or EB-7 categories must receive labor certification. This means that in order to approve a petition for an EB-6 or EB-7 green card, the Secretary of Homeland Security (DHS) must first receive certification from the Secretary of Labor that the petitioning employer cannot find sufficient, willing, qualified, and available American workers, and that employment of the alien will not adversely affect the wage and working conditions of similarly situated employees. (Id., see also INA § 212(a)(5)(A)) However, the DHS Secretary may waive this requirement if he or she deems a waiver of such to be in the national interest.
In addition to helping foreign students qualify for EB-6 and EB-7 green cards, the legislation creates a new non-immigrant student visa category. This new visa is specifically created for foreign students seeking entry to U.S. universities to study in a STEM field and potentially seek an EB-6 or EB-7 green card in the future. (See Draft Legislation at §5) While statutorily this provision is intended to get around the current requirement that foreign students declare they intend to return to their country of residence upon graduating, it has the potential to increase competition for American students studying in STEM fields, as universities benefit significantly from admitting foreign students who pay full tuition rates. (See INA § 101(a)(15)(F))
House Republican leadership has already placed the yet-to-be introduced legislation on this week's suspension calendar, calling for a vote on it as soon as Thursday. (Republican Cloakroom Website, Sept. 17, 2012) In response, House Democrats — spearheaded by Immigration Subcommittee Ranking Member Zoe Lofgren — have introduced their own legislation to grant green cards to STEM degree holders without eliminating the visa lottery. (See H.R. 6412; The Hill, Sept. 16, 2012)
If passed, the legislation's future in the Senate remains to be seen. Top amnesty advocates in that Chamber have already announced they oppose eliminating the visa lottery program. (CQ Today, Sept. 14, 2012) Similarly, President Obama has urged businesses that have long lobbied for more skilled green cards to not support the Smith bill.
U.S. Citizenship and Immigration Services (USCIS) announced Thursday it has approved its first round of applications for the Administration's backdoor amnesty deferred action program. (FOX News Latino, Sept. 14, 2012; see also USA Today, Sept. 12, 2012) According to a new USCIS report, the agency has received over 82,000 deferred action applications since the program began on August 15. (See USCIS Report, Sept. 13, 2012) Within one month, the agency has "completed" 29 submissions and more than 1,600 are in the final review stage. (Id.) News outlets are reporting that these completed submissions have been approved. (CBS News, Sept. 14, 2012, FOX News, Sept. 14, 2012)
The quick approval of these first applications has some wondering whether USCIS is committed to weeding out fraudulent and potentially dangerous candidates. In fact, new information shows that the agency is moving through the background checks in a matter of days. In the first round of processing, fingerprints were taken on a Thursday and the background checks were completed by the following Monday, according to USCIS Director Alejandro Mayorkas. (New York Times, Sept. 12, 2012)
These developments have generated sharp criticism from Members of Congress. Senator Jeff Sessions (R-AL) noted that "the speed at which the deferrals are being granted continues to raise severe concerns about fraud and the administration's ability to verify items like age of entry, educational status and even current age." (Washington Post, Sept. 12, 2012) House Judiciary Committee Chairman Lamar Smith (R-TX) also warned that "comprehensive security checks can take months and delve into the background of individuals. Judiciary Chairman Lamar Smith directly challenged USCIS's process, asserting that the Administration has in fact "refused to do thorough background checks for these illegal immigrants." (Rep. Smith Statement, Sept. 12, 2012)
How quickly an application is pushed through the deferred action review process, according to Director Mayorkas, comes down to whether an applicant seems more likely than not to be eligible for the amnesty. "If somebody submits documents that show by the preponderance of the evidence that they meet the guidelines, we are poised to move the cases as quickly as possible," he explained. (New York Times, Sept. 12, 2012) Preponderance of evidence is the lowest burden of proof under U.S. law, requiring that little more than half of all evidence presented point to a certain conclusion.
USCIS insists on moving through the deferred action applications despite being previously scrutinized for rubber-stamping immigration benefits applications. Earlier this year, the USCIS Office of Inspector General issued a report uncovering a pervasive "get-to-yes" culture within the agency, wherein supervisors encouraged adjudicators to abandon thorough reviews of applications for visas, work authorization, status adjustments, and other immigration benefits in favor of quick approvals. (OIG-12-24 Report, Jan. 2012) According to the report, nearly 25 percent of USCIS employees surveyed responded that they had been pressured to approve questionable applications. (Id.; see also FAIR Legislative Update, Feb. 21, 2012)
Now that the first deferred action applications have been approved, Director Mayorkas expects the first employment authorization permits to be issued in the coming weeks. (New York Times, Sept. 12, 2012) Stay tuned as FAIR uncovers more information...
The Department of Homeland Security's Office of Inspector General is investigating the EB-5 immigrant investor visa program to determine if it is "effectively administered and managed to detect and deter fraud, waste, abuse, while avoiding national security threats," according to internal documents obtained by The Daily. (The Daily, Sept. 10, 2012)
According to internal documents, attorneys investigating the matter have found that U.S. Citizenship and Immigration Services (USCIS), the agency tasked with processing EB-5 applications, is making no effort to determine whether EB-5 projects adhere to securities law and is potentially granting applications "based on patently illegal investments and/or investment schemes." (Id.) According to an anonymous agency official, the Securities and Exchange Commission (SEC) requested roughly 500 files related to the program. Finding a pattern of "not following the rules," the official said that the goal is to ensure those violating securities law will face sanctions and penalties. (Id.)
Created in 1990, the EB-5 immigrant visa program allows wealthy foreigners to invest their way into the country by granting nearly 10,000 green cards annually to those who invest $500,000 to $1 million in a "new commercial enterprise" that will create or preserve at least 10 jobs. (See INA § 203(b)(5); see also USCIS Website) Although supporters of the program claim this program benefits the U.S. economy, critics have pointed out that the program has in fact only limited effectiveness. For example, in 2005, the GAO found that after 12 years the EB-5 program had only led to $1 billion in investments (instead of the predicted $48 billion) and there was no reliable accounting of jobs created. (See Selling America Short: The Failure of the EB-5 Visa Program, p.1) Moreover, the program measures job creation by counting jobs created both "directly" and "indirectly," making it impossible to accurately calculate whether an investment under the EB-5 program actually creates jobs. (See 8 C.F.R. § 204.6(e))
When asked about the investigation, USCIS officials refused to comment, merely stating that the internal documents received by the newspaper were privileged and it wouldn't be appropriate to discuss them. (The Daily, Sept. 10, 2012) SEC officials were similarly coy, only noting that they have a "cooperative working relationship with USCIS." (Id.)
Just days after the fraud investigation was made public, the House of Representatives passed a bill reauthorizing the EB-5 program for an additional three years. (See House Roll Call Vote 580) The bill now goes to President Obama for his signature.
The Department of Homeland Security (DHS) announced last week it is shelving the Mexican Interior Repatriation Program (MIRP), which has been responsible for the deportation of over 125,000 illegal border-crossers from Mexico since the program's inception in 2004. (FOX News, Sept. 10, 2012)
The MIRP, implemented by U.S. Immigration and Customs Enforcement (ICE) in cooperation with the Mexican government, was created to repatriate illegal aliens found along the Arizona border to Mexico by flying them home. Under MIRP, Mexican nationals apprehended by the U.S. Border Patrol in the Yuma and Tucson sectors are taken to DHS facilities in Nogales and Yuma, Ariz., where the aliens are medically screened, meet with Mexican Consulate officials and are offered the opportunity to voluntarily participate in the program. (See ICE Press Release, July 11, 2011) Flying illegal aliens to the center of Mexico--as opposed to bussing them just across the border-- makes it harder for them to reattempt illegal entry and reduces their contact with organized crime groups operating along the border. (See ICE Press Release, Sept. 30, 2010)
But Administration officials claimed the program was too costly to continue. "We're running into a more-budget conscious society," said Tucson Border Patrol Assistant Chief George Allen, adding that DHS and Mexican officials even attempted to find ways to cut costs, considering cheaper alternatives that are "not as effective but still effective." (FOX News, Sept. 10, 2012)
Nonetheless, according to DHS, the program will be replaced by a new program that focuses on deporting criminal illegal aliens, suggesting the move to scrap MIRP was fueled more by the Administration's priorities than cost. According to a DHS statement, DHS Secretary Janet Napolitano intends to replace MIRP with the more expansive Interior Removal Initiative (IRI). (ABC-Tucson, Sept. 10, 2012) Whereas MIRP was a voluntary program for noncriminal illegal aliens apprehended along the border, IRI would be a mandatory, nationwide program for deporting criminal and noncriminal illegal aliens alike. (Univision, Sept. 12, 2012)
Moreover, despite the earlier concerns over MIRP's price tag, there is currently no projected cost for IRI. According to ICE Spokeswoman Nicole Navas, "The thing is that [IRI] hasn't been implemented yet. But…we hope to have a projected cost soon." (Id.) DHS is expected to make an announcement about the future of IRI within the next month. (Id.)
Last week, the Los Angeles City Council voted to study a proposal that would allow city libraries to issue IDs to illegal alien residents. (LA Times, Sept. 11, 2012) The City Council unanimously approved the study, which could potentially benefit over 300,000 illegal aliens (Id.)
Supporters say the measure is needed to enable illegal aliens to open bank accounts and obtain other city services. (Id.) However, under the Patriot Act, banks are already permitted to open bank accounts for illegal aliens with as little documentation as a matricula consular card. (P.L. 107-56 § 326, Oct. 26, 2001) Nevertheless, proponents argue that some illegal aliens are nervous about using a matricula consular card and therefore should be allowed to receive a library ID card under this proposal, one that only requires establishing residency in the city. The city would then partner with private vendors to set up bank accounts for aliens who want to use the library ID as a debit card. (LA Times, Sept. 11, 2012)
If Los Angeles were to adopt the library ID proposal, it would follow in the footsteps of other cities, such as San Francisco and New Haven, that issue city IDs to illegal aliens. (See, e.g., FAIR Legislative Update, July 11, 2011) The ordinances in each city vary somewhat, but have all been used to accommodate the continued residence of illegal aliens in those cities.